No. 2-14-0706 Opinion filed June 17, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re ESTATE OF TYLER B. BREWER, ) Appeal from the Circuit Court Deceased ) of Winnebago County. ) ) No. 13-P-387 (Hannah Brewer, Petitioner-Appellant, v. ) Todney B. Brewer, Executor and Legatee, ) Honorable Jourdan Brewer, Heir, and Erin E. Walsh, ) Lisa R. Fabiano, Guardian ad litem, Respondents-Appellees). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Jorgensen concurred in the judgment and opinion.

OPINION

¶1 This is an appeal from an order of the circuit court of Winnebago County granting a

motion to dismiss a petition to contest the validity of a will. The sole issue on appeal is whether

the petition alleged sufficient facts to establish that the will had been revoked in accordance with

the relevant provisions of the Probate Act of 1975 (Probate Act) (755 ILCS 5/4-7 (West 2012)).

For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 Tyler B. Brewer died on July 17, 2013. At the time of his death, he had two heirs,

Hannah Brewer and Jourdan Brewer. On September 12, 2013, the Last Will and Testament of

Tyler Brewer, dated December 1, 1999, was admitted to probate. Todney Brewer, Tyler’s

brother, was named executor of the will.

¶4 On March 11, 2014, Hannah filed a petition to contest the validity of the will. In her

petition, Hannah alleged:

“On or about September 22, 2012, in contemplation of his impending death and with the

intention to revoke the Alleged Will, Tyler cancelled a copy of the Alleged Will by

signing the first page, striking through material provisions of the copy, and writing ‘As of

9/22/12, This will is void. I am working on a new one that includes both Hannah &

Jordan [sic].’ On information and belief, [a] true and correct copy of the cancelled copy

is attached hereto as ‘Exhibit A’.”

Hannah alleged that Tyler wrote the initials “ ‘TB’ ” on the document and that such writing was

intended to be his signature. Hannah further alleged that, on or about September 22, 2012,

Tyler’s original will was “lost, misplaced, or otherwise not in the possession of Tyler.” Hannah

attached a copy of the purportedly cancelled will to her petition as Exhibit A. Exhibit A reveals

that Tyler purportedly cancelled an unsigned and unattested copy of the will. Hannah asked the

court to declare the will invalid, to find that Tyler died intestate, to revoke the order appointing

Todney as executor, to appoint an administrator of the estate, and to order supervised

administration of the estate.

¶5 Todney, as executor and legatee, moved to dismiss the petition to contest the validity of

the will, arguing that the petition failed to allege sufficient facts to establish that the will had

been revoked in accordance with the relevant provisions of the Probate Act (755 ILCS 5/4-7

(West 2012)). 1 In his motion to dismiss, Todney argued (1) that the writing on the copy of the

1 In a footnote, Todney took issue with Hannah’s claim that the original will had been

lost or misplaced, maintaining instead that it had been found in Tyler’s filing cabinet and filed

with the court. He also took issue with Hannah’s assertion that Tyler’s death had been

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will was insufficient to cancel the will, and (2) that an attempt to cancel a copy of a will is

insufficient as a matter of law.

¶6 In response, Hannah first argued that the court should stay the proceedings and allow her

to conduct discovery, because facts material to determining the effectiveness of the alleged

cancellation were at all times in the exclusive custody of Todney. In the alternative, Hannah

argued that Todney’s motion should be denied, because (1) the markings on the copy of the will

were sufficient to cancel the will, and (2) Todney failed to meet his burden of proving that, under

the circumstances, cancellation of a copy of the will was impermissible.

¶7 The trial court granted the motion to dismiss “on the basis that markings on an unattested

copy of a will are insufficient to cancel an original will” and it specifically declined to address

the issue of “whether the markings on the copy of the will are sufficient to support cancellation.”

The court found no just reason to delay enforcement or appeal of its order under Illinois Supreme

Court Rule 304(a) (eff. Feb. 26, 2010).

¶8 Hannah timely appealed.

¶9 II. ANALYSIS

¶ 10 As an initial matter, we note that Todney’s motion to dismiss did not designate whether it

was brought pursuant to section 2-615 or section 2-619 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-615, 2-619 (West 2012)). A motion to dismiss under section 2-615 tests the legal

sufficiency of the plaintiff’s claim, while a motion to dismiss under section 2-619 admits the

legal sufficiency of the plaintiff’s claim but asserts certain defects or defenses outside the

pleading that defeat the claim. Patrick Engineering, Inc. v. City of Naperville,

,

“impending,” claiming instead that Tyler died unexpectedly in his sleep. Nevertheless, Todney

noted that these allegations were immaterial to the arguments raised in his motion to dismiss.

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; Wallace v. Smyth,

(2002). When a moving party fails to designate

under which section it seeks dismissal, a reviewing court typically reviews the motion according

to its grounds, its requests, or its treatment by the parties and the trial court. Illinois Graphics

Co. v. Nickum,

(1994). Here, Todney argued in his motion that “[t]he

Petition fails to allege sufficient facts to show cancellation.” Although he referred, in a footnote,

to factual matters not contained in the petition, he specifically noted that they were immaterial to

the arguments raised in his motion. In her response, Hannah argued that, because the motion

was directed toward the manner in which her petition was pleaded, she would treat it as brought

under section 2-615. Accordingly, it is clear that Todney sought dismissal under section 2-615

and that the parties and the court treated the motion as such.

¶ 11 On review of a dismissal under section 2-615, the question presented is whether the

allegations of the complaint, when taken as true and viewed in the light most favorable to the

plaintiff, are sufficient to state a cause of action upon which relief can be granted. Cowper v.

Nyberg,

, ¶ 12. A cause of action should not be dismissed under section 2-615

unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to

recovery. Marshall v. Burger King Corp.,

(2006). Dismissals under section

2-615 are reviewed de novo.

Further, to the extent that we must interpret any provision of

the Probate Act, we do so de novo. In re Estate of Poole,

(2003).

¶ 12 “[R]evocation of a will is a matter of intent, an act of the mind of the testator manifested

by some physical act.” In re Estate of Davies,

(1972). To be effective, the

act that manifests the intent must be one of those described by the Probate Act. In re Will of

Barrie,

(1946). Section 4-7(a) of the Probate Act provides:

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“A will may be revoked only (1) by burning, cancelling, tearing or obliterating it by the

testator himself or by some person in his presence and by his direction and consent, (2) by

the execution of a later will declaring the revocation, (3) by a later will to the extent that it

is inconsistent with the prior will or (4) by the execution of an instrument declaring the

revocation and signed and attested in the manner prescribed by this Article for the signing

and attestation of a will.” 755 ILCS 5/4-7(a) (West 2012).

Hannah argues that Tyler cancelled his original will by virtue of certain markings that he made to

a copy of that will. According to Hannah, cancellation of a copy of a will is a sufficient

manifestation of an intent to cancel an original will if the original will was believed to be lost,

misplaced, or otherwise not in the testator’s possession.

¶ 13 Taking the allegations of Hannah’s petition as true, we must determine whether Tyler’s

act in purporting to cancel an unsigned and unattested copy of a will falls within the language of

section 4-7 of the Probate Act. When we interpret a statute, the cardinal rule is to ascertain and

give effect to the intent of the legislature. National City Mortgage v. Bergman,

(2010). “The language of the statute is the best indication of the legislature’s intent.”

Murray v. Chicago Youth Center,

(2007). The statute’s language must be

given its plain and ordinary meaning, and we are not free to construe the statute in a manner that

changes that meaning.

If the statutory language is clear and unambiguous, we must give

effect to that plain and ordinary meaning without resorting to other canons or aids of statutory

interpretation.

¶ 14 Under the plain language of the Probate Act, only a “will” may be revoked by

cancellation. Specifically, the Probate Act provides that “[a] will may be revoked only (1) by

burning, cancelling, tearing or obliterating it.” (Emphases added.) 755 ILCS 5/4-7(a) (West

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). The pronoun “it” references the word “will.” A “will” must meet specific statutory

requirements. Under section 4-3 of the Probate Act, “[e]very will shall be in writing, signed by

the testator or by some person in his presence and by his direction and attested in the presence of

the testator by 2 or more credible witnesses.” (Emphasis added.) 755 ILCS 5/4-3(a) (West

2012). An unsigned will is not a “will.” See In re Estate of Wedeberg,

(1992) (decedent’s name handwritten by decedent at the top of her will for purposes of

titling the will did not meet the signature requirement of the Probate Act and thus will was not

valid). An unattested will is not a “will.” See In re Estate of Lum,

(1998) (decedent’s will declared invalid where it was not signed by the witnesses). Here,

because the will purportedly cancelled by Tyler is an unsigned and unattested copy of his

original will, it is not a “will” for purposes of section 4-7 of the Probate Act. Thus, any act taken

by Tyler upon that unsigned and unattested copy does not amount to a revocation of the will

under the Probate Act.

¶ 15 Our conclusion is supported by courts of other jurisdictions that have held that a

revocatory act performed on any photocopy is legally ineffective. See Gushwa v. Hunt, 2008-

NMSC-064, ¶ 20,

,

(testator’s act of writing “revoked” across the pages

of a photocopy of his will was insufficient to revoke the original will); In re Estate of Tolin,

(Fla. 1993) (testator’s destruction of a copy of a codicil, rather than the original

codicil, was insufficient to revoke the codicil); In re Krieger,

(N.Y. App.

Div. 1993) (“a will cannot be revoked by the physical destruction of an unexecuted conformed

copy”); Estate of Charitou,

(N.Y. Sur. 1993) (holding that the

writings upon a photocopy of a will were insufficient to revoke the will); In re Estate of Stanton,

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(N.D. 1991) (“the destruction of an unexecuted or conformed copy is

ineffectual as an act of revocation regardless of the testator’s intent”).

¶ 16 Hannah’s reliance on In re Estate of Holmberg,

(1948), does not warrant a

different conclusion. There, the supreme court held that “cancellation by a testator of one of two

duplicate originals of his will cancels and revokes the other duplicate original left in the custody

of another person.” (Emphasis added.)

. The issue was “whether an otherwise

effective revocation of a will is nullified by the continued existence, in the possession of another,

of a duplicate original bearing no mark or evidence of revocation.”

Here, Tyler purportedly

cancelled an unsigned and unattested copy, not a duplicate original. Unlike in Holmberg, this

was not an “otherwise effective revocation.”

¶ 17 The remaining cases relied on by Hannah are similarly inapplicable, because they all

involved acts done on original wills. See Will of Barrie,

(the word “ ‘Void’ ” was

written in various places on the will by the decedent in such a manner as to manifest her intent to

revoke the will); Noesen v. Erkenswick,

(1921) (writing across and upon a part

of the signature, the date, the name of the executor, and the devise made by the will was effective

cancellation); Burton v. Wylde,

(1913) (“When the will was produced for

probate the signature of the testatrix to the codicil had been cut out with some sharp instrument,

destroying at the same time certain words that appeared in the residuary clause on the other side

of the page.”); Estate of Davies,

(decedent’s declaration of intent to revoke

the will, handwritten on face of will, was effective revocation); In re Estate of Flynn,

(1940) (decedent directed another individual to write “ ‘Cancelled 10-28-27’ ” on

the margin of her will).

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¶ 18 Based on the foregoing, we affirm the order granting Todney’s motion to dismiss. Like

the trial court, we need not consider whether the markings on the copy of the will otherwise

would have been sufficient to cancel the will.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County

granting Todney’s motion to dismiss Hannah’s petition to contest the validity of the will.

¶ 21 Affirmed.

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